Studies in Israel Legislative Problems...

An impressive collection of thoughts on major legal problems facing Israel, a country where the law is at a transitional stage and in the process of continous growth.

16 G. TEDESCHI However, in this country, as we have said, there was an additional factor at work: English law was consciously and deliberately resorted to in areas in which it did not apply according to law — that is, where it had not been imposed by the legislator. Because they regarded the provisions of English law as superior to those of the local law, or as more adapted to modern requirements, and sometimes perhaps simply because access to English rules was easier than to Islamic or other law, the judges and the profession turned to English law and pretended that it applied. 8 This process, since it was voluntary and conscious, was a reception; but since it was surreptitious and had to deny itself and its own true nature — as every judicial creation contra legem — it was a concealed reception — a  crypto- reception. 4. In addition to the notions of  reception and  infiltration a third notion,  inoculation, has been put forward and contrasted with them. R. W. Lee, the distinguished Roman- Dutch lawyer, writes:  Here [ in England] there was no reception, scarcely an infiltration; we might rather speak of an inoculation. The English law at a crucial period of its development ( 12th and 13th centuries) borrowed enough Roman law to give strength and coherence to its native fibre, and to enable it to resist successfully any general reception at a later date. 9 Arminjon, Nolde and Wolff, too, in their treatise on comparative law, speaking of the influence of Roman law on modern legal systems generally, say that it manifests itself in two things: in the number of provisions of Roman origin which can still be found in those systems, and in the legal tech-niques which the German jurists developed on the basis of that law. They add:  In the apt formulation of Dr. R. W. Lee, there is here neither a reception nor an infiltration but merely an inoculation. 10 The learned authors of the Traite de droit compare are right in saying that it was Lee who first contrasted  inoculation with reception and infiltration, but Lee was not the first to use this metaphor, and to the present writer it does not seem a happy one. Moreover, it is very doubtful whether there is any room for this notion as such, in addition to those of reception and infiltration. 8. For examples, see G. Tedeschi,  Private Law and Legislation Today, in Scripta Hierosolymitana, V, Studies in Law, Jerusalem, 1958, p. 39 ff. 9. Cf. R. W. Lee,  Roman Law in the British Empire, particularly in the Union of South Africa, in Atti Congresso internal. Diritto Romano, Pavia, 1934- 5, II, p. 251 ff.; cf. p. 254. 10. Cf. Arminjon, Nolde, Wolff, Traiti de droit compare, I, Paris, 1950, p. 59. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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